Wednesday, June 23, 2010

Parawise comments on Review Petition slapped by GOI on ESM

PARAWISE COMMENTS PREPARED BY MAJOR AK DHANAPALAN ON THE REVIEW PETITION FILED BY UNION OF INDIA IN THE SUPREME COURT OF INDIA ON -/5/2010

Para 1 Main reason given for review, is huge amount (Rs.1623.7 Cr) involved. The judiciary has to look into whether justice has been done to the respondents or otherwise. It was proved beyond doubt that justice has NOT been done to the petitioners by the applicants.

Para 2 The present case is NOT related to the manner of pay fixation as prescribed in chapter 28.1 or 28.113 of the Pay commission report. The Pay Commission report is only RECOMMENDATORY in nature and has no legal standi. The Govt resolutions are statutory provisions. Resolution No.9E dt 18/3/87 clearly define that “Method of fixation of pay recommended for civilian employees in chapter 31 of the report should also be applied to the Armed Forces”. Accordingly the method of fixation notified in SRO 12E dt 23/9/86 is applicable in the case of Armed Forces.

Para 3 No Provision exists for reduction of Rank Pay from the total emoluments before fixing the pay in the scale. Rank Pay has been granted “in-addition to basic pay” .(Para (1) (i) of the said resolution No.9E dt 18/3/87) This Rank Pay has been granted exclusive to Armed Forces.

Para 4 The Rank Pay is not meant to differentiate between the ranks by deducting the same from the Basic Pay. The contention of the petitioner is absolutely wrong. Army Instruction is a subordinate instruction and cannot over ride the statutory rules.

Para 5 “Carved out of emoluments” is a new terminology used in this petition only. This is nowhere used either in the pay commission report or in the Govt orders. This terminology is used only to mislead this H’ble court. Method of fixation of pay has been defined in the said SRO which also gives all required definitions/ explanations (para3).

Para 6 Govt of India through the resolutions 9E dt 18/3/87 under Para (1) (i) granted “Basic Pay and Rank Pay -addition to Basic Pay” The rate of rank pay recommended by the pay commission was revised by the Govt twice on the intervention of the Armed Forces and from some other corner and accepted the present rate after due deliberations in the cabinet and the Indian Parliament was also taken into confidence. This was also widely publicized through the media to give an impact in the public. It cannot be now said that the grant of Rank Pay was unintentional.

Para 7,8&9 Aggrieved by the deduction of Rank Pay from the basic pay Major AK Dhanapalan filed a petition in the High Court of Kerala. The H”ble High Court was pleased to admit the plea of Major AK Dhanapalan and directed the respondents to re-fix the pay without deducting the rank pay with re-trospect from 1/1/86. The writ appeal and the SLP filed in the Supreme Court were dismissed. Accordingly the UOI accepted the judgment and implemented the same by re- fixing the pay of Major AK Dhanapalan wef 1/1/86 and the arrears were paid. No review petition on this issue was filed by the UOI or pending before any court. As such it becomes a settled law.

Para 10,11 The UOI has decided to NOT to extend benefit of this judgment to other similarly personnel, on the plea that benefit will be given only to the respondent of the case. Aggrieved by this decision effected officers also approached various High Courts across the country. The UOI requested this H”ble court to get all these cases transferred to this court. Accordingly some of the cases were transferred to this H”ble Court. Since all these cases are of similar nature, one case as a pilot case has been examined by the court and after hearing both side, pronounced the judgment on 8/3/2010.

Para 12 Judgment of 5/10/98 and 4/7/2003 of the High Court of Kerala are implemented only in the case of Major AK Dhanapalan.

Para 13 Rank Pay has been paid to only Major AK Dhanapalan and this is a clear discrimination. The respondents and other similarly placed officers have not been paid the Rank Pay. This can be very much seen from Para 3 and 6 of this review petition itself.

Para 14 Judgment of 5/10/98 is very clear on this issue. Had it been Paid to all similarly placed officers at that point of time, the lump-sum Amount required would have been less. The petitioners not only wilfully denied justice to the similarly placed officers of the Armed Forces but also unlawfully retained a large sum with them which otherwise due to them. The respondents were fully aware of this fact when they paid arrears to Major AK Dhanapalan.

Para 15 All these prayers are liable to be dismissed with cost as injustice to Ex Servicemen is untenable in the court of Supreme Justice.Maj AK Dhanapalan (Retd)

General SK Bahri writes...The comments of Maj Dhanapalan are logical and bares the nefarious intentions of the bureaucracy. All ESM orgs should write to the PM, RM, FM that such injustice to servicemen will be resisted by them and may result in greater loss of face to the Govt which is attempting to go against all norms of decency and fairplay. I have already written a letter to Mrs Sonia Gandhi with copies to PM, RM, Law Minister and the three Chiefs. Will be forwarding copies of it in a day or so to all of you.Lt Gen SK Bahri (Retd)(1ST JSW Course)

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